Johnson v. Walker, 97-CV-462E F.

Citation74 F.Supp.2d 287
Decision Date15 November 1999
Docket NumberNo. 97-CV-462E F.,97-CV-462E F.
PartiesRaymond A. JOHNSON, Petitioner, v. Hans WALKER, Superintendent, Auburn Correctional Facility, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York

Raymond A. Johnson, Mid-State Correctional Facility, Marcy, NY, petitioner pro se.

Frank J. Clark, Erie County District Attorney, for respondent, Steven Meyer, Assistant District Attorney, Buffalo, NY, of counsel.

ORDER

ELFVIN, Senior District Judge.

The Honorable Leslie G. Foschio, a Magistrate Judge in this judicial district, having considered the within Petition and Response pursuant to this Court's referral under 28 U.S.C. § 636(b)(1)(B) and having on October 14, 1999 filed his Report and Recommendation concerning such and no objection thereto having been made, it is hereby

ORDERED that Judge Foschio's Report and Recommendation is confirmed in its entirety and the Petition for a writ of habeas corpus is denied and this case shall be closed.

REPORT and RECOMMENDATION JURISDICTION

FOSCHIO, United States Magistrate Judge.

Petitioner commenced this action on June 3, 1997, requesting relief under 28 U.S.C. § 2254. On November 12, 1997, the matter was referred to the undersigned by the Hon. John T. Elfvin for report and recommendation.

BACKGROUND

Petitioner, Raymond A. Johnson ("Petitioner"), was arrested on March 23, 1979 in connection with the armed robbery and murder of Elizabeth J. Hansen ("Mrs.Hansen") on March 20, 1979 in Buffalo, New York. Petitioner and his brother Gerald Johnson were jointly charged in an indictment dated April 27, 1979 with one count of Intentional Murder (N.Y.Penal Law § 125.25(1) (McKinney 1999)1), two counts of Felony Murder (N.Y.Penal Law § 125.25(3)), one count of Robbery in the First Degree (N.Y.Penal Law § 160.15), one count of Burglary in the First Degree (N.Y.Penal Law § 140.30), and one count of Criminal Possession of a Weapon in the Fourth Degree (N.Y.Penal Law § 265.01).

A Huntley2 hearing was conducted on November 19, 1979. By order filed December 17, 1979, New York Supreme Court Justice Frederick M. Marshall denied Petitioner's motion to suppress his confession as an involuntary statement. Wade3 and suppression hearings were conducted on November 20, 1979. A Cardona4 hearing was held on November 20 and 21, 1979.

Petitioner was jointly tried with his brother in a jury trial commencing on January 2, 1980. Petitioner was represented at trial by Luke C. Owens, Esq., while Richard Kubiniec, Esq., represented his brother. Justice Marshall presided over the nine day trial which concluded on January 14, 1980, when both co-defendants were found guilty of murder in the second degree, felony murder.5 On February 11, 1980, Petitioner moved to set aside the verdict pursuant to New York Criminal Procedure Law §§ 330.30 and 330.40. Justice Marshall denied that motion and proceeded to sentence Petitioner to a determinate sentence of 25 years to life.

On February 22, 1980, Petitioner, through his appellate counsel Richard L. Baumgartner, Esq., appealed his conviction to the Appellate Division, Fourth Department which unanimously affirmed the conviction on November 15, 1985. People v. Johnson, 115 A.D.2d 316, 496 N.Y.S.2d 177 (1985). Leave to appeal to the Court of Appeals was denied on January 2, 1986. People v. Johnson, 67 N.Y.2d 653, 499 N.Y.S.2d 1049, 490 N.E.2d 565 (1986).

On January 7, 1995, Petitioner moved a writ of error coram nobis, and also to vacate his judgment pursuant to New York Criminal Procedure Law § 440.10. That request was denied by the Appellate Division on March 17, 1995. People v. Johnson, 213 A.D.2d 1085, 625 N.Y.S.2d 993 (1995).

On June 3, 1997, Petitioner filed the instant petition seeking habeas relief accompanied by a request to proceed in forma pauperis. Petitioner challenges the constitutionality of his conviction asserting denial of his Sixth Amendment rights to confrontation and assistance of counsel.

As the petition was filed more than seven years after his direct appeal to the Appellate Division, Judge Elfvin, on June 9, 1997, ordered Petitioner to explain why his petition should not be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1) which provides for a one year limitations period within which to petition for habeas relief. In his response, filed July 7, 1997, Petitioner attributed his late filing to confusion as to whether he or Mr. Baumgartner would be responsible for filing his habeas petition. On August 18, 1997, Judge Elfvin deemed the petition timely and Respondent was ordered to file his answer within 30 days. Accordingly, the Answer was filed on October 30, 1997, accompanied by a Memorandum of Law in support (Docket Item No. 10) ("Respondent's Memorandum"). The state court records were received on October 15, 1998.

Based on the following, the petition should be DISMISSED.

FACTS

According to a statement signed by Petitioner on March 23, 1979, on the night of March 20, 1979, Petitioner, his brother Gerald Johnson6 and Gilbert Adams were walking around Buffalo, New York drinking beer when Adams suggested going to the housing projects located at Fillmore and Best Streets where Adams believed they could get some money. (T2, 181-82).7 ,8 The trio proceeded to the projects and, upon reaching them, continued walking until they noticed that the door of Apartment C, 1098 Fillmore Avenue, was ajar. (T2, 182). As they headed toward the door, an elderly woman, Mrs. Hansen, looked out and, upon spotting them, slammed the door shut and locked it. (T2, 182). Adams said, "let's go," and kicked in the door with his foot. (T2, 182). Once inside the apartment the elderly woman, who was in the bathroom and unclothed, screamed for the intruders to leave. (T2, 182). Adams went into the bathroom and started jumping on the woman, Gerald Johnson stood inside by the refrigerator and Petitioner remained outside the apartment by the front door. (T2, 182).

According to Petitioner's statement, Petitioner stuck his head into the apartment and told his brother to tell Adams to get moving. (T2, 182). Petitioner then entered the apartment and, accompanied by his brother, walked to the bathroom where they observed Mrs. Hansen lying on the floor, screaming, her head covered in blood. (T2, 182-83). Gerald Johnson said it was time to leave and Adams kicked the woman in the head. (T2, 183). She stopped screaming and became motionless. (T2, 183). The three then left the apartment through the door and walked down Best Street. (T2, 183).

Adams retrieved a rifle, wrapped in a white towel, from the yard of a house located at 759 Best Street, around the corner from 1098 Fillmore Avenue, where Petitioner's other brother, John Johnson, resided. (T2, 183). With Adams carrying the gun, the three then returned to the apartment and reentered. (T2, 183). Petitioner and his brother took the portable television while Adams went to the bathroom where the injured woman remained on the floor. (T2, 183). Adams pointed the gun at the woman who pleaded "Please, please, my head is spinning." (T2, 183). Adams then stated to Petitioner and his brother, "go ahead. I'll catch up." (T2, 183). As Petitioner and his brother carried the television out of the apartment, climbing over a fence onto Best Street, they heard a gunshot. (T2, 183). They hid the television in the yard of the house at 759 Best Street and then waited for five minutes on the porch of the house for Adams who never arrived. (T2, 183-84). Petitioner and his brother then carried the television to a house at 23 Sweeney Street where Maggie Fields lived. (T2, 184). Gerald brought the television inside the house while Petitioner remained outside on the street corner. (T2, 184). After Gerald came out of the house, he and Petitioner stopped by the Toast of the Town Bar for a beer before going home. (T2, 184).

Petitioner stated that the gun Adams retrieved from 759 Best Street belonged to his brother Gerald and neither he nor his brother Gerald were armed when they entered Mrs. Hansen's apartment although Adams was armed with a 30-30 Winchester. (T2, 184, 186). According to Petitioner, he entered Mrs. Hansen's apartment on March 20, 1979 looking for money, (T2, 187), and the television was sold to Maggie Fields for $25. (T2, 185).

Mrs. Hansen was found in her apartment dead of a single gunshot wound to her head. The position of her body indicated she was either sitting or kneeling when she was shot at close range in the forehead and had suffered blunt force trauma to her face. (T1, at 128; T2, at 380-89).

John Johnson's girlfriend, Mabel Hall, testified that upon returning to her apartment located upstairs at 759 Best Street at 10:30 P.M. on March 20, 1979, she observed Petitioner and his brother Gerald downstairs. (T2, 457-58). Gerald was calling for his other brother John to have a gun put away. (T2, 457). Mabel Hall saw the gun and her daughter found a spent shell casing which Mabel threw in the garbage. (T2, 458-59). According to Mabel, John Johnson generally kept the gun in her bedroom under the mattress. (T2, 457).

Gerald Johnson's girlfriend, Cora Lee Hall, testified that at 10:30 P.M. on March 20, 1979, Gerald brought her jewelry which was identified at trial as having belonged to Mrs. Hansen. (T2, 207-209, 217-21). Two days later, Cora Lee turned the jewelry over to the police after being advised it was stolen property and that failure to turn it over could result in charges of possession of stolen property. (T2, 210, 213).

Maggie Fields, mother of both Mabel Hall and Cora Lee Hall, testified at trial that on March 20, 1979, at 10:30 P.M., Gerald Johnson brought her a television set and asked if she would like to buy it. (T2, 228-32). Ms. Fields noticed the reception antenna was broken and mentioned to Gerald that he must have stolen it. (T2, 229). Nevertheless, Ms. Fields allowed the television to remain at her house. (T2, 230). According to Ms. Fields, some police officers...

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